State Hospital, Jamestown v. North Dakota Employment Sec. Bureau

• Decision Date: 12 March 1976
• Docket Number: No. 9142,9142
• Citation: 239 N.W.2d 819
• Parties: STATE HOSPITAL, JAMESTOWN, North Dakota, Plaintiff and Appellee, v. NORTH DAKOTA EMPLOYMENT SECURITY BUREAU, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 819

239 N.W.2d 819

STATE HOSPITAL, JAMESTOWN, North Dakota, Plaintiff and Appellee, v. NORTH DAKOTA EMPLOYMENT SECURITY BUREAU, Defendant and Appellant.

Civ. No. 9142.

Supreme Court of North Dakota.

March 12, 1976.

Syllabus by the Court

1. One who is discharged upon attaining an age fixed by his employer for compulsory retirement and who is willing and able to continue his employment does not retire 'voluntarily without good cause' and is eligible for unemployment compensation.

2. Continuing in an employment after learning that the employer has a compulsory retirement policy does not make the mandatory retirement under that policy 'voluntary' on the part of the employee so as to disqualify him for unemployment compensation.

Clinton R. Ottmar, Sp. Asst. Atty. Gen., Jamestown, for plaintiff and appellee.

Lawrence E. Watson, Sp. Asst. Atty. Gen., Bismarck, for Employment Security Bureau, for defendant and appellant.

VOGEL, Justice.

This case presents the question whether an employee who is retired against his will at age 67 is entitled to unemployment compensation.

Albert J. George was employed by the North Dakota State Hospital, an agency of the State of North Dakota, from March 28, 1960, to December 31, 1972. His employment was terminated at the latter date because of a mandatory retirement policy adopted by the hospital pursuant to Executive Order No. 43 of the Governor of North Dakota.

On February 8, 1973, he filed a claim for unemployment insurance benefits, including a statement that he was forced to retire from the State Hospital because of his age, but was looking for full-time work. When notified of the claim, the employer replied that 'Mr. George reached mandatory retirement age on December 31, 1972, and was retired. His birth date is 2--27--1904.' The Unemployment Compensation Division determined that

'. . . he did not quit work voluntarily. It is determined that his termination was for reasons other than misconduct in connection with work within the meaning of the law. No disqualification is imposed.'

The employer then wrote to the Employment Security Bureau:

'We appeal the determination of unemployment compensation because the claimant has retired under the provisions of the State Retirement Policy and is eligible for Social Security as well as the State Retirement Plan benefits.'

A hearing was thereupon held, at which a representative of the employer testified that George was retired because of a mandatory requirement that all employees who on January 1, 1973, are 67 years of age shall retire on January 1, 1973. She testified that there was no way that he could have worked beyond December 31, that his work was satisfactory, and that the only reason for his termination was the mandatory retirement age.

The Employment Security Bureau appeals tribunal determined that an employee is disqualified for unemployment benefits under North Dakota law only if he has voluntarily left his last employment without good cause or if he has been discharged from his last employment for reasons which would constitute misconduct within the meaning of the law, that the claimant did not quit his job nor was he discharged for misconduct, and that the law does not provide for a disqualification when an individual has been separated from his last employment based upon a mandatory retirement policy. The appeals tribunal affirmed the award.

The employer appealed again, stating: 'Our position is the same. Mr. Albert J. George retired because of age under our mandatory retirement system.' The Bureau reviewed the matter and affirmed the decision of the appeals referee. The employer then petitioned for judicial review, and the matter was reviewed by the district court under the terms of the Adminsitrative Agencies Practice Act, Chapter 28--32, N.D.C.C.

The district court, relying on Stream v. Continental Machines, Inc., 261 Minn. 289, 111 N.W.2d 785 (1961), reversed the Employment Security Bureau and held that:

'By continuing employment with the State Hospital after initiation of the mandatory retirement plan, claimant's leaving was voluntary and he is therefore disqualified from receiving benefits. Accordingly the Bureau's determination is reversed.'

Findings of fact, conclusions of law, and order for judgment and judgment followed, as did this appeal. We reverse the district court and direct the reinstatement of the decision of the Employment Security Bureau.

Our review, as well as the review of the district court, is limited by Section 28-- 32--19, N.D.C.C., which requires us to affirm the decision of the administrative agency unless it is found that the decision is not in accordance with law, or was in violation of the constitutional rights of the appellant, or that any of the provisions of the Administrative Agencies Practice Act has not been complied with in the proceedings before the agency, or that the rules or procedure of the agency have not afforded the appellant a fair hearing, or that the findings of fact made by the agency are not supported by the evidence, or that the conclusions and decision of the agency are not supported by the findings of fact. This section was not superseded by the adoption of the Rules of Civil Procedure. O'Brien v. North Dakota Workmen's Compensation Bureau, 222 N.W.2d 379 (N.D.1974).

What we have before us now, of course, is a question of law. Decisions of administrative agencies, as well as trial courts, on questions of law are fully reviewable and are not fortified by the 'clearly erroneous' rule. Northwestern Bell Telephone Co. v. Board of Commissioners of the City of Fargo, 211 N.W.2d 399 (N.D.1973); Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972).

We believe the trial court's reliance upon the Minnesota cases is misplaced. In the first place, the Minnesota statute differs considerably from the pertinent North Dakota statute. The Minnesota statute, M.S.A. 268.09, provides that

'An individual shall be disqualified for benefits:

'(1) If such individual voluntarily and without good cause Attributable to the employer discontinued his employment with such employer or was discharged for misconduct . . .' (Emphasis supplied.)

The North Dakota statute, Section 52--06--02, N.D.C.C., does not contain the words 'attributable to the...